Whither Chinese Law?

Abstract

Current Chinese debates about “modernity” focus on what Chinese law was and is, and where it should go from here; this article argues that the answer should be sought in historical processes involved in the pursuit of modern ideals—such as scientific knowledge, industrial development, and citizen rights—and not in any one theory or ideology. The essay attempts to excavate from the past century's history of Chinese legal practice components of what might be considered Chinese modernity, with examples from such major areas of civil law as inheritance-old age support, property rights, torts, and divorce. In addition, it emphasizes the court mediation system created by the Chinese Communist Party and the “practical moralism” mode of thinking evident in both imperial and modern Chinese lawmaking, pointing out the many commonalities they share with the current “alternative dispute resolution” movement of the West and with the legal pragmatism tradition of modern American law. The proper direction of development of Chinese law lies neither simply in importing the formalist rights laws of the West nor simply in relying on the practical moralism of China's past but rather, and properly so, in their long-term coexistence, competition, division of labor, and mutual influence.